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This part establishes the procedures to be utilized and identifies the sanctions that are available in proceedings before the Department of Energy and State Offices, in accordance with parts 209 through 214 of this chapter. Any exception, exemption, appeal, stay, modification, recession, redress or resolution of private grievance sought under the authority of 42 U.S.C. 7194 shall be governed by the procedural rules set forth in 10 CFR part 1003.
The definitions set forth in other parts of this chapter shall apply to this part, unless otherwise provided. In addition, as used in this part, the term:
Action means an order, interpretation, notice of probable violation or ruling issued, or a rulemaking undertaken by the DOE or, as appropriate, by a State Office.
Adjustment means a modification of the base period volume or other measure of allocation entitlement in accordance with part 211 of this chapter.
Aggrieved, for purposes of administrative proceedings, describes and means a person with an interest sought to be protected under the FEAA, EPAA, or Proclamation No. 3279, as amended, who is adversely affected by an order or interpretation issued by the DOE or a State Office.
Appropriate Regional Office or appropriate State Office means the office located in the State or DOE region in which the product will be physically delivered.
Assignment means an action designating that an authorized purchaser be supplied at a specified entitlement level by a specified supplier.
Conference means an informal meeting, incident to any proceeding, between DOE or State officials and any person aggrieved by that proceeding.
Consent order means a document of agreement between DOE and a person prohibiting certain acts, requiring the performance of specific acts or including any acts which DOE could prohibit or require pursuant to § 205.195.
Duly authorized representative means a person who has been designated to appear before the DOE or a State Office in connection with a proceeding on behalf of a person interested in or aggrieved by that proceeding. Such appearance may consist of the submission of applications, petitions, requests, statements, memoranda of law, other documents, or of a personal appearance, verbal communication, or any other participation in the proceeding.
EPAA means the Emergency Petroleum Allocation Act of 1973 (Pub. L. 93-159).
EPCA means the Energy Policy and Conservation Act (Pub. L. 94-163).
Exception means the waiver or modification of the requirements of a regulation, ruling or generally applicable requirement under a specific set of facts.
Exemption means the release from the obligation to comply with any part or parts, or any subpart thereof, of this chapter.
DOE means the Department of Energy, created by the FEAA and includes the DOE National Office and Regional Offices.
FEAA means the Federal Energy Administration Act of 1974 (Pub. L. 93-275).
Federal legal holiday means New Year's Day, Washington's Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans' Day, Thanksgiving Day, Christmas Day, and any other day appointed as a national holiday by the President or the Congress of the United States.
Interpretation means a written statement issued by the General Counsel or his delegate or Regional Counsel, in response to a written request, that applies the regulations, rulings, and other precedents previously issued, to the particular facts of a prospective or completed act or transaction.
Notice of probable violation means a written statement issued to a person by the DOE that states one or more alleged violations of the provisions of this chapter or any order issued pursuant thereto.
Order means a written directive or verbal communication of a written directive, if promptly confirmed in writing, issued by the DOE or a State Office. It may be issued in response to an application, petition or request for DOE action or in response to an appeal from an order, or it may be a remedial order or other directive issued by the DOE or a State Office on its own initiative. A notice of probable violation is not an order. For purposes of this definition a “written directive” shall include telegrams, telecopies and similar transcriptions.
Person means any individual, firm, estate, trust, sole proprietorship, partnership, association, company, joint-venture, corporation, governmental unit or instrumentality thereof, or a charitable, educational or other institution, and includes any officer, director, owner or duly authorized representative thereof.
Proceeding means the process and activity, and any part thereof, instituted by the DOE or a State Office, either on its own initiative or in response to an application, complaint, petition or request submitted by a person, that may lead to an action by the DOE or a State Office.
Remedial order means a directive issued by the DOE requiring a person to cease a violation or to eliminate or to compensate for the effects of a violation, or both.
Ruling means an official interpretative statement of general applicability issued by the DOE General Counsel and published in the Federal Register that applies the DOE regulations to a specific set of circumstances.
State Office means a State Office of Petroleum Allocation certified by the DOE upon application pursuant to part 211 of this chapter.
Throughout this part the use of a word or term in the singular shall include the plural and the use of the male gender shall include the female gender.
(a) A person may make an appearance, including personal appearances in the discretion of the DOE, and participate in any proceeding described in this part on his own behalf or by a duly authorized representative. Any application, appeal, petition, request or complaint filed by a duly authorized representative shall contain a statement by such person certifying that he is a duly authorized representative, unless a DOE form requires otherwise. Falsification of such certification will subject such person to the sanctions stated in 18 U.S.C. 1001 (1970).
(b) Suspension and disqualification: The DOE or a State Office may deny, temporarily or permanently, the privilege of participating in proceedings, including oral presentation, to any individual who is found by the DOE—
(1) To have made false or misleading statements, either verbally or in writing;
(2) To have filed false or materially altered documents, affidavits or other writings;
(3) To lack the specific authority to represent the person seeking a DOE or State Office action; or
(4) To have engaged in or to be engaged in contumacious conduct that substantially disrupts a proceeding.
(a) Any document, including, but not limited to, an application, request, complaint, petition and other documents submitted in connection therewith, filed with the DOE or a State Office under this chapter is considered to be filed when it has been received by the DOE National Office, a Regional Office or a State Office. Documents transmitted to the DOE must be addressed as required by § 205.12. All documents and exhibits submitted become part of an DOE or a State Office file and will not be returned.
(b) Notwithstanding the provisions of paragraph (a) of this section, an appeal, a response to a denial of an appeal or application for modification or recision in accordance with §§ 205.106(a)(3) and 205.135(a)(3), respectively, a reply to a notice of probable violation, the appeal of a remedial order or remedial order for immediate compliance, a response to denial of a claim of confidentiality, or a comment submitted in connection with any proceeding transmitted by registered or certified mail and addressed to the appropriate office is considered to be filed upon mailing.
(c) Hand-delivered documents to be filed with the Office of Exceptions and Appeals shall be submitted to Room 8002 at 2000 M Street, NW., Washington, D.C. All other hand-delivered documents to be filed with the DOE National Office shall be submitted to the Executive Secretariat at 12th and Pennsylvania Avenue, NW., Washington, D.C. Hand-delivered documents to be filed with a Regional Office shall be submitted to the Office of the Regional Administrator. Hand-delivered documents to be filed with a State Office shall be submitted to the office of the chief executive officer of such office.
(d) Documents received after regular business hours are deemed filed on the next regular business day. Regular business hours for the DOE National Office are 8 a.m. to 4:30 p.m. Regular business hours for a Regional Office or a State Office shall be established independently by each.
(a) Days. (1) Except as provided in paragraph (b) of this section, in computing any period of time prescribed or allowed by these regulations or by an order of the DOE or a State Office, the day of the act, event, or default from which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included unless it is a Saturday, Sunday, or Federal legal holiday in which event the period runs until the end of the next day that is neither a Saturday, Sunday, nor a Federal legal holiday.
(2) Saturdays, Sundays or intervening Federal legal holidays shall be excluded from the computation of time when the period of time allowed or prescribed is 7 days or less.
(b) Hours. If the period of time prescribed in an order issued by the DOE or a State Office is stated in hours rather than days, the period of time shall begin to run upon actual notice of such order, whether by verbal or written communication, to the person directly affected, and shall run without interruption, unless otherwise provided in the order, or unless the order is stayed, modified, suspended or rescinded. When a written order is transmitted by verbal communication, the written order shall be served as soon thereafter as is feasible.
(c) Additional time after service by mail. Whenever a person is required to perform an act, to cease and desist therefrom, or to initiate a proceeding under this part within a prescribed period of time after issuance to such person of an order, notice, interpretation or other document and the order, notice, interpretation or other document is served by mail, 3 days shall be added to the prescribed period.
When a document is required to be filed within a prescribed time, an extension of time to file may be granted by the office with which the document is required to be filed upon good cause shown.
(a) All orders, notices, interpretations or other documents required to be served under this part shall be served personally or by registered or certified mail or by regular United States mail (only when service is effected by the DOE or a State Office), except as otherwise provided.
(b) Service upon a person's duly authorized representative shall constitute service upon that person.
(c) Service by registered or certified mail is complete upon mailing. Official United States Postal Service receipts from such registered or certified mailing shall constitute prima facie evidence of service.
(a) In this section the following terms have the definitions indicated unless otherwise provided.
(1) “DOE Official” means the Secretary of the Department of Energy, the Administrator of the Economic Regulatory Administration, the Administrator of Energy Information Administration, the General Counsel of the Department of Energy, the Special Counsel for Compliance, the Assistant Administrator for Enforcement, the Director of the Office of Hearings and Appeals, or the duly authorized delegate of any of the foregoing officials.
(2) “SRO” means a Special Report Order issued pursuant to paragraph (b) of this section.
(b) (1) In accordance with the provisions of this section and as otherwise authorized by law, a DOE Official may sign, issue and serve subpoenas; administer oaths and affirmations; take sworn testimony; compel attendance of and sequester witnesses; control dissemination of any record of testimony taken pursuant to this section; subpoena and reproduce books, papers, correspondence, memoranda, contracts agreements, or other relevant records or tangible evidence including, but not limited to, information retained in computerized or other automated systems in possession of the subpoenaed person. Unless otherwise provided by subpart O, the provisions of this section apply to subpoenas issued by the office of Hearings and Appeals with respect to matters in proceedings before it.
(2) A DOE Official may issue a Special Report Order requiring any person subject to the jurisdiction of the ERA to file a special report providing information relating to DOE regulations, including but not limited to written answers to specific questions. The SRO may be in addition to any other reports required by this chapter.
(3) The DOE Official who issues a subpoena or SRO pursuant to this section, for good cause shown, may extend the time prescribed for compliance with the subpoena or SRO and negotiate and approve the terms of satisfactory compliance.
(4) Prior to the time specified for compliance, but in no event more than 10 days after the date of service of the subpoena or SRO, the person upon whom the document was served may file a request for review of the subpoena or SRO with the DOE Official who issued the document. The DOE Official then shall forward the request to his supervisor who shall provide notice of receipt to the person requesting review. The supervisor or his designee may extend the time prescribed for compliance with the subpoena or SRO and negotiate and approve the terms of satisfactory compliance.
(5) If the subpoena or SRO is not modified or rescinded within 10 days of the date of the supervisor's notice of receipt,
(i) the subpoena or SRO shall be effective as issued; and
(ii) the person upon whom the document was served shall comply with the subpoena or SRO within 20 days of the date of the supervisor's notice of receipt, unless otherwise notified in writing by the supervisor or his designee.
(6) There is no administrative appeal of a subpoena or SRO.
(c) (1) A subpoena or SRO shall be served upon a person named in the document by delivering a copy of the document to the person named.
(2) Delivery of a copy of the document to a natural person may be made by:
(i) Handing it to the person;
(ii) Leaving it at the person's office with the person in charge of the office;
(iii) Leaving it at the person's dwelling or usual place of abode with a person of suitable age and discretion who resides there;
(iv) Mailing it to the person by registered or certified mail, at his last known address; or
(v) Any method that provides the person with actual notice prior to the return date of the document.
(3) Delivery of a copy of the document to a person who is not a natural person may be made by:
(i) Handing it to a registered agent of the person;
(ii) Handing it to any officer, director, or agent in charge of any office of such person;
(iii) Mailing it to the last known address of any registered agent, officer, director, or agent in charge of any office of the person by registered or certified mail, or
(iv) Any method that provides any registered agent, officer, director, or agent in charge of any office of the person with actual notice of the document prior to the return date of the document.
(d)(1) A witness subpoenaed by the DOE shall be paid the same fees and mileage as paid to a witness in the district courts of the United States.
(2) If in the course of a proceeding conducted pursuant to subpart M or O, a subpoena is issued at the request of a person other than an officer or agency of the United States, the witness fees and mileage shall be paid by the person who requested the subpoena. However, at the request of the person, the witness fees and mileage shall be paid by the DOE if the person shows:
(i) The presence of the subpoenaed witness will materially advance the proceeding; and
(ii) The person who requested that the subpoena be issued would suffer a serious hardship if required to pay the witness fees and mileage. The DOE Official issuing the subpoena shall make the determination required by this subsection.
(e) If any person upon whom a subpoena or SRO is served pursuant to this section, refuses or fails to comply with any provision of the subpoena or SRO, an action may be commenced in the United States District Court to enforce the subpoena or SRO.
(f) (1) Documents produced in response to a subpoena shall be accompanied by the sworn certification, under penalty of perjury, of the person to whom the subpoena was directed or his authorized agent that (i) a diligent search has been made for each document responsive to the subpoena, and (ii) to the best of his knowledge, information, and belief each document responsive to the subpoena is being produced unless withheld on the grounds of privilege pursuant to paragraph (g) of this section.
(2) Any information furnished in response to an SRO shall be accompanied by the sworn certification under penalty of perjury of the person to whom it was directed or his authorized agent who actually provides the information that (i) a diligent effort has been made to provide all information required by the SRO, and (ii) all information furnished is true, complete, and correct unless withheld on grounds of privilege pursuant to paragraph (g) of this section.
(3) If any document responsive to a subpoena is not produced or any information required by an SRO is not furnished, the certification shall include a statement setting forth every reason for failing to comply with the subpoena or SRO.
(g) If a person to whom a subpoena or SRO is directed withholds any document or information because of a claim of attorney-client or other privilege, the person submitting the certification required by paragraph (f) of this section also shall submit a written list of the documents or the information withheld indicating a description of each document or information, the date of the document, each person shown on the document as having received a copy of the document, each person shown on the document as having prepared or been sent the document, the privilege relied upon as the basis for withholding the document or information, and an identification of the person whose privilege is being asserted.
(h)(1) If testimony is taken pursuant to a subpoena, the DOE Official shall determine whether the testimony shall be recorded and the means by which the testimony is recorded.
(2) A witness whose testimony is recorded may procure a copy of his testimony by making a written request for a copy and paying the appropriate fees. However, the DOE official may deny the request for good cause. Upon proper identification, any witness or his attorney has the right to inspect the official transcript of the witness' own testimony.
(i) The DOE Official may sequester any person subpoenaed to furnish documents or give testimony. Unless permitted by the DOE Official, neither a witness nor his attorney shall be present during the examination of any other witnesses.
(j)(1) Any witness whose testimony is taken may be accompanied, represented and advised by his attorney as follows:
(i) Upon the initiative of the attorney or witness, the attorney may advise his client, in confidence, with respect to the question asked his client, and if the witness refuses to answer any question, the witness or his attorney is required to briefly state the legal grounds for such refusal; and
(ii) If the witness claims a privilege to refuse to answer a question on the grounds of self-incrimination, the witness must assert the privilege personally.
(k) The DOE Official shall take all necessary action to regulate the course of testimony and to avoid delay and prevent or restrain contemptuous or obstructionist conduct or contemptuous language. DOE may take actions as the circumstances may warrant in regard to any instances where any attorney refuses to comply with directions or provisions of this section.
(a) Purpose and scope. The provisions of this section shall apply to all documents required or permitted to be filed with the DOE or with a State Office.
(b) Signing. All applications, petitions, requests, appeals, comments or any other documents that are required to be signed, shall be signed by the person filing the document or a duly authorized representative. Any application, appeal, petition, request, complaint or other document filed by a duly authorized representative shall contain a statement by such person certifying that he is a duly authorized representative, unless an DOE form other wise requires. (A false certification is unlawful under the provisions of 18 U.S.C. 1001 (1970)).
(c) Labeling. An application, petition, or other request for action by the DOE or a State Office should be clearly labeled according to the nature of the action involved ( e.g., “Application for Assignment”) both on the document and on the outside of the envelope in which the document is transmitted.
(d) Obligation to supply information. A person who files an application, petition, complaint, appeal or other request for action is under a continuing obligation during the proceeding to provide the DOE or a State Office with any new or newly discovered information that is relevant to that proceeding. Such information includes, but is not limited to, information regarding any other application, petition, complaint, appeal or request for action that is subsequently filed by that person with any DOE office or State Office.
(e) The same or related matters. A person who files an application, petition, complaint, appeal or other request for action by the DOE or a State Office shall state whether, to the best knowledge of that person, the same or related issue, act or transaction has been or presently is being considered or investigated by any DOE office, other Federal agency, department or instrumentality; or by a State Office, a state or municipal agency or court; or by any law enforcement agency; including, but not limited to, a consideration or investigation in connection with any proceeding described in this part. In addition, the person shall state whether contact has been made by the person or one acting on his behalf with any person who is employed by the DOE or any State Office with regard to the same issue, act or transaction or a related issue, act or transaction arising out of the same factual situation; the name of the person contacted; whether the contact was verbal or in writing; the nature and substance of the contact; and the date or dates of the contact.
(f) Request for confidential treatment. (1) If any person filing a document with the DOE or a State Office claims that some or all the information contained in the document is exempt from the mandatory public disclosure requirements of the Freedom of Information Act (5 U.S.C. 552 (1970)), is information referred to in 18 U.S.C. 1905 (1970), or is otherwise exempt by law from public disclosure, and if such person requests the DOE or a State Office not to disclose such information, such person shall file together with the document a second copy of the document from which has been deleted the information for which such person wishes to claim confidential treatment. The person shall indicate in the original document that it is confidential or contains confidential information and may file a statement specifying the justification for non-disclosure of the information for which confidential treatment is claimed. If the person states that the information comes within the exception in 5 U.S.C. 552(b)(4) for trade secrets and commercial or financial information, such person shall include a statement specifying why such information is privileged or confidential. If the person filing a document does not submit a second copy of the document with the confidential information deleted, the DOE or a State Office may assume that there is no objection to public disclosure of the document in its entirety.
(2) The DOE or a State Office retains the right to make its own determination with regard to any claim of confidentiality. Notice of the decision by the DOE or a State Office to deny such claim, in whole or in part, and an opportunity to respond shall be given to a person claiming confidentiality of information no less than five days prior to its public disclosure.
(g) Separate applications, petitions or requests. Each application, petition or request for DOE action shall be submitted as a separate document, even if the applications, petitions, or requests deal with the same or a related issue, act or transaction, or are submitted in connection with the same proceeding.
Any order issued by the DOE or a State Office under this chapter is effective as against all persons having actual notice thereof upon issuance, in accordance with its terms, unless and until it is stayed, modified, suspended, or rescinded. An order is deemed to be issued on the date, as specified in the order, on which it is signed by an authorized representative of the DOE or a State Office, unless the order provides otherwise.
(a) If there is any conflict or inconsistency between the provisions of this part and any other provision of this chapter, the provisions of this part shall control with respect to procedure.
(b) Notwithstanding paragraph (a) of this section, subpart I of part 212 of this chapter shall control with respect to prenotification and reporting and subpart J of part 212 of this chapter shall control with respect to accounting and financial reporting requirements.
(a) All applications, requests, petitions, appeals, reports, DOE or FEO forms, written communications and other documents to be submitted to or filed with the DOE National Office in accordance with this chapter shall be addressed as provided in this section. The DOE National Office has facilities for the receipt of transmissions via TWX and FAX. The FAX is a 3M full duplex 4 or 6 minute (automatic) machine.
FAX Numbers
TWX Numbers
(202) 254-6175
(701) 822-9454
(202) 254-6461
(701) 822-9459
(1) Documents for which a specific address and/or code number is not provided in accordance with paragraphs (a)(2) through (7) of this section, shall be addressed as follows: Department of Energy, Attn: (name of person to receive document, if known, or subject), Washington, DC 20461.
(2) Documents to be filed with the Office of Exceptions and Appeals, as provided in this part or otherwise, shall be addressed as follows. Office of Exceptions and Appeals, Department of Energy, Attn: (name of person to receive document, if known, and/or labeling as specified in § 205.9(c)), Washington, DC 20461.
(3) Documents to be filed with the Office of General Counsel, as provided in this part or otherwise, shall be addressed as follows: Office of the General Counsel, U.S. Department of Energy, Attn: (name of person to receive document, if known, and labeling as specified in § 205.9(c)), 1000 Independence Avenue, Washington, DC 20585.
(4) Documents to be filed with the Office of Private Grievances and Redress, as provided in this part or otherwise, shall be addressed as follows: Office of Private Grievances and Redress, Department of Energy, Attn: (name of person to receive document, if known and/or labeling as specified in § 205.9(c)), Washington, DC 20461.
(5) All other documents filed, except those concerning price (see paragraph (a)(6) of this section), those designated as DOE or FEO forms (see paragraph (a)(7) of this section), and “Surplus Product Reports” (see paragraph (a)(8) of this section), but including those pertaining to compliance and allocation (adjustment and assignment) of allocated products, are to be identified by one of the code numbers stated below and addressed as follows: Department of Energy, Code____, labeling as specified in § 205.9(c), Washington, DC 20461.
Code Numbers
Code
Product:
Crude oil
10
Naphtha and gas oil
15
Propane, butane and natural gasoline
25
Other products
30
Bunker fuel
40
Residual fuel (nonutility)
50
Motor gasoline
60
Middle distillates
70
Aviation fuels
80
Submissions by specific entities:
Electric utilities
45
Department of Defense
55
(6) Documents pertaining to the price of covered products, except those to be submitted to other offices as provided in this part, shall be addressed to the Department of Energy, Code 1000, Attn: (name of person to receive document, if known, and/or labeling as specified in § 205.9(c)), Washington, DC 20461.
(7) Documents designated as DOE or FEO forms shall be submitted in accordance with the instructions stated in the form.
(8) “Surplus Product Reports” shall be submitted to the Department of Energy, Post Office Box 19407, Washington, DC 20036.
(9) Documents to be filed with the Director of Oil Imports, as provided in this part or otherwise, shall be addressed as follows: Director of Oil Imports, Department of Energy, P.O. Box 7414, Washington, DC 20044.
(10) Petitions for rulemaking to be filed with the Economic Regulatory Administration National Office shall be addressed as follows: Economic Regulatory Administration, Attn: Assistant Administrator for Regulations and Emergency Planning (labeled as “Petition for Rulemaking,”) 2000 M Street, N.W., Washington, DC 20461.
(b) All reports, applications, requests, notices, complaints, written communications and other documents to be submitted to or filed with an DOE Regional Office in accordance with this chapter shall be directed to one of the following addresses, as appropriate:
Region 1
Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, Vermont; Regional Office, Department of Energy, 150 Causeway Street, Boston, Massachusetts 02114.
Region 2
New Jersey, New York, Puerto Rico, Virgin Islands; Regional Office, Department of Energy, 26 Federal Plaza, New York, New York 10007.
Region 3
Delaware, District of Columbia, Maryland, Pennsylvania, Virginia, West Virginia; Regional Office, Department of Energy, Federal Office Building, 1421 Cherry Street, Philadelphia, Pennsylvania 19102.
Region 4
Alabama, Canal Zone, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina; Regional Office, Department of Energy, 1655 Peachtree Street NW., Atlanta, Georgia 30309.
Region 5
Illinois, Indiana, Michigan, Minnesota, Ohio, Wisconsin; Regional Office, Department of Energy, 175 West Jackson Street, Chicago, Illinois 60604.
Region 6
Arkansas, Louisiana, New Mexico, Oklahoma, Texas; Regional Office, Department of Energy, 212 North Saint Paul Street, Dallas, Texas 75201.
Region 7
Iowa, Kansas, Missouri, Nebraska; Regional Office, Department of Energy, Federal Office Building, P.O. Box 15000, 112 East 12th Street, Kansas City, Missouri 64106.
Region 8
Colorado, Montana, North Dakota, South Dakota, Utah, Wyoming; Regional Office, Department of Energy, Post Office Box 26247, Belmar Branch, Denver, Colorado 80226.
Region 9
American Samoa, Arizona, California, Guam, Hawaii, Nevada, Trust Territory of the Pacific Islands; Regional Office, Department of Energy, 111 Pine Street, San Francisco, California 94111.
Region 10
Alaska, Idaho, Oregon, Washington; Regional Office, Department of Energy, Federal Office Building, 909 First Avenue, Room 3098, Seattle, Washington 98104.
(a) Except as otherwise specifically provided in other subparts of this part, all documents to be filed with the ERA pursuant to this part shall be filed with the appropriate ERA Regional Office (unless otherwise specified in part 211 of this chapter), except that all documents shall be filed with the ERA National Office that relate to:
(1) The allocation and pricing of crude oil pursuant to subpart C of part 211 and part 212 of this chapter;
(2) Refinery yield controls pursuant to subpart C of part 211 of this chapter;
(3) The pricing of propane, butane and natural gasoline pursuant to part 212 of this chapter and the allocation of butane and natural gasoline pursuant to part 211 of this chapter;
(4) The allocation and pricing of middle distillate fuels pursuant to subpart G of part 211 and part 212 of this chapter, filed by electric utilities;
(5) The allocation and pricing of aviation fuel pursuant to subpart H of part 211 and part 212 of this chapter, filed by civil air carriers (except air taxi/commercial operators);
(6) The allocation and pricing of residual fuel oil pursuant to subpart I of part 211 and part 212 of this chapter, filed by electric utilities;
(7) The allocation and pricing of naphtha and gas oil pursuant to subpart J of part 211 and part 212 of this chapter;
(8) The allocation and pricing of other products pursuant to subpart K of part 211 and part 212 of this chapter;
(9) An application for an exemption under subpart E of this part; requests for a rulemaking proceeding under subpart L of this part or for the issuance of a ruling under subpart K of this part; and petitions to the Office of Private Grievances and Redress under subpart R of this part;
(10) The pricing of products pursuant to part 212 of this chapter, filed by a refiner; and
(11) The allocation of crude oil and other allocated products to meet Department of Defense needs pursuant to part 211 of this chapter.
(12) The allocation of crude oil and other allocated products to be utilized as feedstock in a synthetic natural gas plant, pursuant to § 211.29.
(13) Allocations, fee-paid and fee-exempt licenses issued pursuant to part 213 of this chapter.
(b) Applications by end-users and wholesale purchasers for an allocation under the state set-aside system in accordance with § 211.17 shall be filed with the appropriate State Office.
(c) Applications to a State Office or a DOE Regional Office shall be directed to the office located in the state or region in which the allocated product will be physically delivered. An applicant doing business in more than one state or region must apply separately to each State or region in which a product will be physically delivered, unless the State Offices or Regional Offices involved agree otherwise.
All interpretations, orders, notices of probable violation or other directives issued, all proceedings initiated, and all other actions taken in accordance with part 205 as it existed prior to the effective date of this amendment, are hereby confirmed and ratified, and shall remain in full force and effect as if issued under this amended part 205, unless or until they are altered, amended, modified or rescinded in accordance with the provisions of this part.
There shall be established at the DOE National Office, 12th and Pennsylvania Avenue, NW., Washington, DC, a public docket room in which shall be made available for public inspection and copying:
(a) A list of all persons who have applied for an exception, an exemption, or an appeal, and a digest of each application;
(b) Each decision and statement setting forth the relevant facts and legal basis of an order, with confidential information deleted, issued in response to an application for an exception or exemption or at the conclusion of an appeal;
(c) The comments received during each rulemaking proceeding, with a verbatim transcript of the public hearing if such a public hearing was held; and
(d) Any other information required by statute to be made available for public inspection and copying, and any information that the DOE determines should be made available to the public.
(a) This subpart establishes the procedures for the filing of a formal request for an interpretation and for the consideration of such request. Responses, which may include verbal or written responses to general inquiries or to other than formal written requests for interpretation filed with the General Counsel or his delegate or a Regional Counsel, are not interpretations and merely provide general information.
(b) A request for interpretation that includes, or could be construed to include an application for an exception or an exemption may be treated solely as a request for interpretation and processed as such.
(a) A person filing under this subpart shall file a “Request for Interpretation,” which should be clearly labeled as such both on the request and on the outside of the envelope in which the request is transmitted, and shall be in writing and signed by the person filing the request. The person filing the request shall comply with the general filing requirements stated in § 205.9 in addition to the requirements stated in this subpart.
(b) If the person filing the request wishes to claim confidential treatment for any information contained in the request or other documents submitted under this subpart, the procedures set out in § 205.9(f) shall apply.
A request for interpretation shall be filed with the General Counsel or his delegate or with the appropriate Regional Counsel at the address provided in § 205.12.
(a) The request shall contain a full and complete statement of all relevant facts pertaining to the circumstances, act or transaction that is the subject of the request and to the DOE action sought. Such facts shall include the names and addresses of all affected persons (if reasonably ascertainable) and a full discussion of the pertinent provisions and relevant facts contained in the documents submitted with the request. Copies of all relevant contracts, agreements, leases, instruments, and other documents shall be submitted with the request. When the request pertains to only one step of a larger integrated transaction, the facts, circumstances, and other relevant information pertaining to the entire transaction must be submitted.
(b) The request for interpretation shall include a discussion of all relevant authorities, including, but not limited to, DOE rulings, regulations, interpretations and decisions on appeals and exceptions relied upon to support the particular interpretation sought therein.
(a) Processing. (1) The DOE may initiate an investigation of any statement in a request and utilize in its evaluation any relevant facts obtained by such investigation. The DOE may accept submissions from third persons relevant to any request for interpretation provided that the person making the request is afforded an opportunity to respond to all third person submissions. In evaluating a request for interpretation, the DOE may consider any other source of information. The DOE on its own initiative may convene a conference, if, in its discretion, it considers that such conference will advance its evaluation of the request.
(2) The DOE shall issue its interpretation on the basis of the information provided in the request, unless that information is supplemented by other information brought to the attention of the General Counsel or a Regional Counsel during the proceeding. The interpretation shall, therefore, depend for its authority on the accuracy of the factual statement and may be relied upon only to the extent that the facts of the actual situation correspond to those upon which the interpretation was based.
(3) If the DOE determines that there is insufficient information upon which to base a decision and if upon request additional information is not submitted by the person requesting the interpretation, the DOE may refuse to issue an interpretation.
(b) Criteria. (1) The DOE shall base an interpretation on the FEA and EPAA and the regulations and published rulings of the DOE as applied to the specific factual situation.
(2) The DOE shall take into consideration previously issued interpretations dealing with the same or a related issue.
(a) An interpretation may be issued after consideration of the request for interpretation and other relevant information received or obtained during the proceeding.
(b) The interpretation shall contain a statement of the information upon which it is based and a legal analysis of and conclusions regarding the application of rulings, regulations and other precedent to the situation presented in the request.
(c) Only those persons to whom an interpretation is specifically addressed and other persons upon whom the DOE serves the interpretation and who are directly involved in the same transaction or act may rely upon it. No person entitled to rely upon an interpretation shall be subject to civil or criminal penalties stated in subpart P of this part for any act taken in reliance upon the interpretation, notwithstanding that the interpretation shall thereafter be declared by judicial or other competent authority to be invalid.
(d) An interpretation may be rescinded or modified at any time. Rescission or modification may be effected by notifying persons entitled to rely on the interpretation that it is rescinded or modified. This notification shall include a statement of the reasons for the recision or modification and, in the case of a modification, a restatement of the interpretation as modified.
(e) An interpretation is modified by a subsequent amendment to the regulations or ruling to the extent that it is inconsistent with the amended regulation or ruling.
(f)(1) Any person aggrieved by an interpretation may submit a petition for reconsideration to the General Counsel within 30 days of service of the interpretation from which the reconsideration is sought. There has not been an exhaustion of administrative remedies until a period of 30 days from the date of service of the interpretation has elapsed without receipt by the General Counsel of a petition for reconsideration or, if a petition for reconsideration of the interpretation has been filed in a timely manner, until that petition has been acted on by the General Counsel. However, a petition to which the General Counsel does not respond within 60 days of the date of receipt thereof, or within such extended time as the General Counsel may prescribe by written notice to the petitioner concerned within that 60 day period, shall be considered denied.
(2) A petition for reconsideration may be summarily denied if—
(i) It is not filed in a timely manner, unless good cause is shown; or
(ii) It is defective on its face for failure to state, and to present facts and legal argument in support thereof, that the interpretation was erroneous in fact or in law, or that it was arbitrary or capricious.
(3) The General Counsel may deny any petition for reconsideration if the petitioner does not establish that—
(i) The petition was filed by a person aggrieved by an interpretation;
(ii) The interpretation was erroneous in fact or in law; or
(iii) The interpretation was arbitrary or capricious. The denial of a petition shall be a final order of which the petitioner may seek judicial review.
There is no administrative appeal of an interpretation.
This subpart establishes the criteria for the issuance of interpretative rulings by the General Counsel. All rulings shall be published in the Federal Register. Any person is entitled to rely upon such ruling, to the extent provided in this subpart.
(a) A ruling may be issued, in the discretion of the General Counsel, whenever there have been a substantial number of inquiries with regard to similar factual situations or a particular section of the regulations.
(b) The General Counsel may issue a ruling whenever it is determined that it will be of assistance to the public in applying the regulations to a specific situation.
(a) A ruling may be modified or rescinded by:
(1) Publication of the modification or rescission in the Federal Register ; or
(2) A rulemaking proceeding in accordance with subpart L of this part.
(b) Unless and until a ruling is modified or rescinded as provided in paragraph (a) of this section, no person shall be subject to the sanctions or penalties stated in subpart P of this part for actions taken in reliance upon the ruling, notwithstanding that the ruling shall thereafter be declared by judicial or other competent authority to be invalid. Upon such declaration, no person shall be entitled to rely upon the ruling.
A written comment on or objection to a published ruling may be filed at any time with the General Counsel at the address specified in § 205.12.
There is no administrative appeal of a ruling.
This subpart establishes the procedures for requesting and conducting a DOE conference, hearing, or public hearing. Such proceedings shall be convened in the discretion of the DOE, consistent with the requirements of the FEAA.
(a) The DOE in its discretion may direct that a conference be convened, on its own initiative or upon request by a person, when it appears that such conference will materially advance the proceeding. The determination as to who may attend a conference convened under this subpart shall be in the discretion of the DOE, but a conference will usually not be open to the public.
(b) A conference may be requested in connection with any proceeding of the DOE by any person who might be aggrieved by that proceeding. The request may be made in writing or verbally, but must include a specific showing as to why such conference will materially advance the proceeding. The request shall be addressed to the DOE office that is conducting the proceeding.
(c) A conference may only be convened after actual notice of the time, place, and nature of the conference is provided to the person who requested the conference.
(d) When a conference is convened in accordance with this section, each person may present views as to the issue or issues involved. Documentary evidence may be presented at the conference, but will be treated as if submitted in the regular course of the proceedings. A transcript of the conference will not usually be prepared. However, the DOE in its discretion may have a verbatim transcript prepared.
(e) Because a conference is solely for the exchange of views incident to a proceeding, there will be no formal reports or findings unless the DOE in its discretion determines that such would be advisable.
(a) The DOE in its discretion may direct that a hearing be convened on its own initiative or upon request by a person, when it appears that such hearing will materially advance the proceedings. The determination as to who may attend a hearing convened under this subpart shall be in the discretion of DOE, but a hearing will usually not be open to the public. Where the hearing involves a matter arising under part 213, the Director of Oil Imports shall be notified as to its time and place, in order that he or his representative may present views as to the issue or issues involved.
(b) A hearing may only be requested in connection with an application for an exception or an appeal. Such request may be by the applicant, appellant, or any other person who might be aggrieved by the DOE action sought. The request shall be in writing and shall include a specific showing as to why such hearing will materially advance the proceeding. The request shall be addressed to the DOE office that is considering the application for an exception or the appeal.
(c) The DOE will designate an agency official to conduct the hearing, and will specify the time and place for the hearing.
(d) A hearing may only be convened after actual notice of the time, place, and nature of the hearing is provided both to the applicant or appellant and to any other person readily identifiable by the DOE as one who will be aggrieved by the DOE action involved. The notice shall include, as appropriate:
(1) A statement that such person may participate in the hearing; or
(2) A statement that such person may request a separate conference or hearing regarding the application or appeal.
(e) When a hearing is convened in accordance with this section, each person may present views as to the issue or issues involved. Documentary evidence may be presented at the hearing, but will be treated as if submitted in the regular course of the proceedings. A transcript of the hearing will not usually be prepared. However, the DOE in its discretion may have a verbatim transcript prepared.
(f) The official conducting the hearing may administer oaths and affirmations, rule on the presentation of information, receive relevant information, dispose of procedural requests, determine the format of the hearing, and otherwise regulate the course of the hearing.
(g) Because a hearing is solely for the exchange of views incident to a proceeding, there will be no formal reports or findings unless the DOE in its discretion determines that such would be advisable.
(a) A public hearing shall be convened incident to a rulemaking:
(1) When the proposed rule or regulation is likely to have a substantial impact on the Nation's economy or large numbers of individuals or businesses; or
(2) When the DOE determines that a public hearing would materially advance the consideration of the issue. A public hearing may be requested by any interested person in connection with a rulemaking proceeding, but shall only be convened on the initiative of the DOE unless otherwise required by statute.
(b) A public hearing may be convened incident to any proceeding when the DOE in its discretion determines that such public hearing would materially advance the consideration of the issue.
(c) A public hearing may only be convened after publication of a notice in the Federal Register, which shall include a statement of the time, place, and nature of the public hearing.
(d) Interested persons may file a request to participate in the public hearing in accordance with the instructions in the notice published in the Federal Register. The request shall be in writing and signed by the person making the request. It shall include a description of the person's interest in the issue or issues involved and of the anticipated content of the presentation. It shall also contain a statement explaining why the person would be an appropriate spokesperson for the particular view expressed.
(e) The DOE shall appoint a presiding officer to conduct the public hearing. An agenda shall be prepared that shall provide, to the extent practicable, for the presentation of all relevant views by competent spokespersons.
(f) A verbatim transcript shall be made of the hearing. The transcript, together with any written comments submitted in the course of the proceeding, shall be made available for public inspection and copying in the public docket room, as provided in § 205.15.
(g) The information presented at the public hearing, together with the written comments submitted and other relevant information developed during the course of the proceeding, shall provide the basis for the DOE decision.
(a) This subpart establishes the procedures for determining the nature and extent of violations of the DOE regulations in parts 210, 211, and 212 and the procedures for issuance of a Notice of Probable Violation, a Proposed Remedial Order, a Remedial Order, an Interim Remedial Order for Immediate Compliance, a Remedial Order for Immediate Compliance, a Notice of Probable Disallowance, a Proposed Order of Disallowance, an Order of Disallowance, or a Consent Order. Nothing in these regulations shall affect the authority of DOE enforcement officials in coordination with the Department of Justice to initiate appropriate civil or criminal enforcement actions in court at any time.
(b) When any report required by the ERA or any audit or investigation discloses, or the ERA otherwise discovers, that there is reason to believe a violation of any provision of this chapter, or any order issued thereunder, has occurred, is continuing or is about to occur, the ERA may conduct an inquiry to determine the nature and extent of the violation. A Remedial Order or Order of Disallowance may be issued thereafter by the Office of Hearings and Appeals. The ERA may commence enforcement proceedings by serving a Notice of Probable Violation, a Notice of Probable Disallowance, a Proposed Remedial Order, a Proposed Order of Disallowance, or an Interim Remedial Order for Immediate Compliance.
(a) If the ERA finds, after the 30-day or other period authorized for reply to the Notice of Probable Violation, that a violation has occurred, is continuing, or is about to occur, it may issue a Proposed Remedial Order, which shall set forth the relevant facts and law.
(b) The ERA may issue a Proposed Remedial Order at any time it finds that a violation has occurred, is continuing, or is about to occur even if it has not previously issued a Notice of Probable Violation.
(c) The ERA shall serve a copy of the Proposed Remedial Order upon the person to whom it is directed. The ERA shall promptly publish a notice in the Federal Register which states the person to whom the Proposed Remedial Order is directed, his address, and the products, dollar amounts, time period, and geographical area specified in the Proposed Remedial Order. The notice shall indicate that a copy of the Proposed Remedial Order with confidential information, if any, deleted may be obtained from the ERA and that within 15 days after the date of publication any aggrieved person may file a Notice of Objection with the Office of Hearings and Appeals of accordance with § 205.193. The ERA shall mail copies of the Federal Register notice to all readily identifiable persons who are likely to be aggrieved by issuance of the Proposed Remedial Order as a final order.
(d) The Proposed Remedial Order shall set forth the proposed findings of fact and conclusions of law upon which it is based. It shall also include a discussion of the relevant authorities which support the position asserted, including rules, regulations, rulings, interpretations and previous decisions issued by DOE or its predecessor agencies. The Proposed Remedial Order shall be accompanied by a declaration executed by the DOE employee primarily knowledgeable about the facts of the case stating that, to the best of declarant's knowledge and belief, the findings of fact are correct.
(e) The ERA may amend or withdraw a Proposed Remedial Order at its discretion prior to the date of service of a Statement of Objections in that proceeding. The date of service of the amended documents shall be considered the date of service of the Proposed Remedial Order in calculating the time periods specified in this part 205.
(a) In a Proposed Remedial Order proceeding the ERA has the burden of establishing a prima facie case as to the validity of the findings of fact and conclusions of law asserted therein. The ERA shall be deemed to meet this burden by the service of a Proposed Remedial Order that meets the requirements of § 205.192(d) and any supplemental information that may be made available under § 205.193A.
(b) Once a prima facie case has been established, a person who objects to a finding of fact or conclusion of law in the Proposed Remedial Order has the burden of going forward with the evidence. Furthermore, the proponent of additional factual representations has the burden of going forward with the evidence.
(c) Unless otherwise specified by the Director of the Office of Hearings and Appeals or his designee, the proponent of an order or a motion or additional factual representations has the ultimate burden of persuasion.
(a) Within 15 days after publication of the notice of a Proposed Remedial Order in the Federal Register any aggrieved person may file a Notice of Objection to the Proposed Remedial Order with the Office of Hearings and Appeals. The Notice shall be filed in duplicate, shall briefly describe how the person would be aggrieved by issuance of the Proposed Remedial Order as a final order and shall state the person's intention to file a Statement of Objections. No confidential information shall be included in a Notice of Objection. The DOE shall place one copy of the Notice in the Office of Hearings and Appeals Public Docket Room.
(b) A person who fails to file a timely Notice of Objection shall be deemed to have admitted the findings of fact and conclusions of law as stated in the Proposed Remedial Order. If a Notice of Objection is not filed as provided by paragraph (a) of this section, the Proposed Remedial Order may be issued as a final order.
(c) A person who files a Notice of Objection shall on the same day serve a copy of the Notice upon the person to whom the Proposed Remedial Order is directed, the DOE Office that issued the Proposed Remedial Order, and the DOE Assistant General Counsel for Administrative Litigation.
(d) The Notice shall include a certification of compliance with the provisions of this section, the names and addresses of each person served with a copy of the Notice, and the date and manner of service.
(e) If no person files a timely Notice of Objection, ERA may request the Office of Hearings and Appeals to issue the Proposed Remedial Order as a final Remedial Order.
(f) In order to exhaust administrative remedies with respect to a Remedial Order proceeding, a person must file a timely Notice of Objection and Statement of Objections with the Office of Hearings and Appeals.
Within 20 days after service of a Notice of Objection to a Proposed Remedial Order the ERA may serve, upon the person to whom the Proposed Remedial Order was directed, supplemental information relating to the calculations and determinations which support the findings of fact set forth in the Proposed Remedial Order.
(a) Upon receipt of a Notice of Objection, the Office of Hearings and Appeals shall publish a notice in the Federal Register which states the person to whom the Proposed Remedial Order is directed, his address and the products, dollar amounts, time period, and geographical area specified in the Proposed Remedial Order. The notice shall state that any person who wishes to participate in the proceeding must file an appropriate request with the Office of Hearings and Appeals.
(b) The Office that issued the Proposed Remedial Order and the person to whom the Order is directed shall be considered participants before the Office of Hearings and Appeals at all stages of an enforcement proceeding. Any other person whose interest may be affected by the proceeding may file a request to participate in the proceeding with the Office of Hearings and Appeals within 20 days after publication of the notice referred to in paragraph (a) of this section. The request shall contain
(1) The person's name, address, and telephone number and similar information concerning his duly authorized representative, if any;
(2) A detailed description of the person's interest in the proceeding;
(3) The specific reasons why the person's active involvement in the proceeding will substantially contribute to a complete resolution of the issues to be considered in the proceeding;
(4) A statement of the position which the person intends to adopt in the proceeding; and
(5) A statement of the particular aspects of the proceeding, e.g. oral argument, submission of briefs, or discovery, in which the person wishes to actively participate.
(c) After considering the requests submitted pursuant to paragraph (b) of this section, the Office of Hearings and Appeals shall determine those persons who may participate on an active basis in the proceeding and the nature of their participation. Participants with similar interests may be required to consolidate their submissions and to appear in the proceeding through a common representative.
(d) Within 30 days after publication of the notice referred to in paragraph (a) of this section, the Office of Hearings and Appeals shall prepare an official service list for the proceeding. Within the same 30 day period the Office of Hearings and Appeals shall mail the official service list to all persons who filed requests to participate. For good cause shown a person may be placed on the official service list as a non-participant, for the receipt of documents only. An opportunity shall be afforded to participants to oppose the placement of a non-participant on the official service list.
(e) A person requesting to participate after the period for submitting requests has expired must show good cause for failure to file a request within the prescribed time period.
(f) The Office of Hearings and Appeals may limit the nature of a person's participation in the proceeding, if it finds that the facts upon which the person's request was based have changed or were incorrect when stated or that the person has not been actively participating or has engaged in disruptive or dilatory conduct. The action referred to in this provision shall be taken only after notice and an opportunity to be heard are afforded.
(a)(1) Statements of Objections, Responses to such Statements, and any motions or other documents filed in connection with a proceeding shall meet the requirements of § 205.9 and shall be filed with the Office of Hearings and Appeals in accordance with § 205.4. Unless otherwise specified, any participant may file a response to a motion within five days of service.
(2) All documents shall be filed in duplicate, unless they contain confidential information, in which case they must be filed in triplicate.
(3) If a person claims that any portion of a document which he is filing contains confidential information, such information should be deleted from two of the three copies which are filed. One copy from which confidential information has been deleted will be placed in the Office of Hearings and Appeals Public Docket Room.
(b)(1) Persons other than DOE offices shall on the date a submission is filed serve each person on the official service list. Service shall be made in accordance with § 205.7 and may also be made by deposit in the regular United States mail, properly stamped and addressed, when accompanied by proof of service consisting of a certificate of counsel or an affidavit of the person making the service. If any filing arguably contains confidential information, a person may serve copies with the confidential information deleted upon all persons on the official service list except DOE offices, which shall be served both an original filing and one with deletions.
(2) A DOE office shall on the date it files a submission serve all persons on the official service list, unless the filing arguably contains confidential information. In that case the DOE office shall notify the person to whom the information relates of the opportunity to identify and delete the confidential information. The DOE Office may delay the service of a submission containing arguably confidential information upon all persons other than the possessor of the confidential information and other DOE offices up to 14 days. The possessor of the confidential information shall serve the filing with any deletions upon all persons on the official service list within such time period.
(c) Any filing made under this section shall include a certification of compliance by the filer with the provisions of this subpart. The person serving a document shall file a certificate of service, which includes the date and manner of service for each person on the official service list.
(a) A person who has filed a Notice of Objection shall file a Statement of Objections to a Proposed Remedial Order within 40 days after service of the Notice of Objection. A request for an extension of time for filing must be submitted in writing and may be granted for good cause shown.
(b) The Statement of Objections shall set forth the bases for the objections to the issuance of the Proposed Remedial Order as a final order, including a specification of the issues of fact or law which the person intends to contest in any further proceeding involving the compliance matter which is the subject of the Proposed Remedial Order. The Statement shall set forth the findings of fact contained in the Proposed Remedial Order which are alleged to be erroneous, the factual basis for such allegations, and any alternative findings which are sought. The Statement shall include a discussion of all relevant authorities which support the position asserted. The Statement may include additional factual representations which are not referred to in the Proposed Remedial Order and which the person contends are material and relevant to the compliance proceeding. For each additional factual representation which the person asserts should be made, the Statement shall include reasons why the factual representation is relevant and material, and the manner in which its validity is or will be established. The person shall also specify the manner in which each additional issue of fact was raised in any prior administrative proceeding which led to issuance of the Proposed Remedial Order, or the reasons why it was not raised.
(c) A Statement of Objections that is filed by the person to whom a Proposed Remedial Order is directed shall include a copy of any relevant Notice of Probable Violation, each Response thereto, the Proposed Remedial Order, and any relevant work papers or supplemental information previously provided by ERA. Copies of this material must also be included with the copy of the Statement of Objections served upon the DOE Assistant General Counsel for Administrative Litigation. All other persons on the official service list must be notified that such materials are available from the notifier upon written request.
(a) Within 30 days after service of a Statement of Objections each participant may file a Response. If any motions are served with the Statement of Objections, a participant shall have 30 days from the date of service to respond to such submissions, notwithstanding any shorter time periods otherwise required in this subpart. The Response shall contain a full discussion of the position asserted and a discussion of the legal and factual bases which support that position. The Response may also contain a request that any issue of fact or law advanced in a Statement of Objections be dismissed. Any such request shall be accompanied by a full discussion of the reasons supporting the dismissal.
(b) A participant may submit a Reply to any Response within 10 days after the date of service of the Response.
(a) If a person intends to file a Motion for Discovery, he must file it at the same time that he files his Statement of Objections or at the same time he files his Response to a Statement of Objections, whichever is earlier. All Motions for Discovery and related filings must be served upon the person to whom the discovery is directed. If the person to whom the discovery is directed is not on the official service list, the documents served upon him shall include a copy of this section, the address of the Office of Hearings and Appeals and a statement that objections to the Motion may be filed with the Office of Hearings and Appeals.
(b) A Motion for Discovery may request that:
(1) A person produce for inspection and photocopying non-privileged written material in his possession;
(2) A person respond to written interrogatories;
(3) A person admit to the genuineness of any relevant document or the truth of any relevant fact; or
(4) The deposition of a material witness be taken.
(c) A Motion for Discovery shall set forth the reasons why the particular discovery is necessary in order to obtain relevant and material evidence and shall explain why such discovery would not unduly delay the proceeding.
(d) Within 20 days after a Motion for Discovery is served, a participant or a person to whom the discovery is directed may file a request that the Motion be denied in whole or in part, stating the reasons which support the request.
(e) Discovery may be conducted only pursuant to an Order issued by the Office of Hearings and Appeals. A Motion for Discovery will be granted if it is concluded that discovery is necessary for the party to obtain relevant and material evidence and that discovery will not unduly delay the proceeding. Depositions will be permitted if a convincing showing is made that the participant cannot obtain the material sought through one of the other discovery means specified in paragraph (b) of this section.
(f) The Director of the Office of Hearings and Appeals or his designee may issue subpoenas in accordance with § 205.8 in support of Discovery Orders, except that § 205.8 (h)(2), (3), and (4) shall not apply to such subpoenas.
(g) The Office of Hearings and Appeals may order that any direct expenses incurred by a person to produce evidence pursuant to a Motion for Discovery be charged to the person who filed the Motion.
(h)(1) If a person fails to comply with an order relating to discovery, the Office of Hearings and Appeals may order appropriate sanctions.
(2) It shall be the duty of aggrieved participants to request that appropriate relief be fashioned in such situations.
(i) Any order issued by the Office of Hearings and Appeals with respect to discovery shall be subject to further administrative review or appeal only upon issuance of the determination referred to in § 205.199B.
A participant who has unsuccessfully attempted in writing to obtain information that another participant claims is confidential may file a Motion for Discovery and Protective Order. This motion shall meet the requirements of § 205.198 and shall specify the particular confidential information that the movant seeks and the reasons why the information is necessary to adequately present the movant's position in the proceeding. A copy of the written request for information, a certification concerning when and to whom it was served and a copy of the response, if any, shall be appended to the motion. The motion must give the possessor of the information notice that a Response to the Motion must be filed within ten days. The Response shall specify the safeguards, if any, that should be imposed if the information is ordered to be released. The Office of Hearings and Appeals may issue a Protective Order upon consideration of the Motion and the Response.
(a) Filing Requirements. At the time a person files a Statement of Objections he may also file a motion requesting an evidentiary hearing be convened. A motion requesting an evidentiary hearing may be filed by any other participant within 30 days after that participant is served with a Statement of Objections.
(b) Contents of Motion for Evidentiary Hearing. A Motion for Evidentiary Hearing shall specify each disputed issue of fact and the bases for the alternative findings the movant asserts. The movant shall also describe the manner in which each disputed issue of fact was raised in any prior administrative proceeding which led to issuance of the Proposed Remedial Order, or why it was not raised. The movant shall with respect to each disputed or alternative finding of fact:
(1) As specifically as possible, identify the witnesses whose testimony is required;
(2) State the reasons why the testimony of the witnesses is necessary; and
(3) State the reasons why the asserted position can be effectively established only through the direct questioning of witnesses at an evidentiary hearing.
(c) Response to Motion for Evidentiary Hearing. Within 20 days after service of any Motion for Evidentiary Hearing, the Office that issued the Proposed Remedial Order shall, and any other participant may file a Response with the Office of Hearings and Appeals. The Response shall specify:
(1) Each particular factual representation which is accepted as correct for purposes of the proceeding;
(2) Each particular factual representation which is denied;
(3) Each particular factual representation which the participant is not in a position to accept or deny;
(4) Each particular factual representation which is not accepted and the participant wishes proven by the submission of evidence;
(5) Each particular factual representation which the participant is prepared to dispute through the testimony of witnesses or the submission of verified documents; and
(6) Each particular factual representation which the participant asserts should be dismissed as immaterial or irrelevant.
(d) Prehearing Conferences. After all submissions with respect to a Motion for Evidentiary Hearing are filed, the Office of Hearings and Appeals may conduct conferences or hearings to resolve differences of view among the participants.
(e) Decision on Motion for Evidentiary Hearing. After considering all relevant information received in connection with the Motion, the Office of Hearings and Appeals shall enter an Order. In the Order the Office of Hearings and Appeals shall direct that an evidentiary hearing be convened if it concludes that a genuine dispute exists as to relevant and material issues of fact and an evidentiary hearing would substantially assist it in making findings of fact in an effective manner. If the Motion for Evidentiary Hearing is granted in whole or in part, the Order shall specify the parties to the hearing, any limitations on the participation of a party, and the issues of fact set forth for the evidentiary hearing. The Order may also require parties that have adopted similar positions to consolidate their presentations and to appear at the evidentiary hearing through a common representative. If the Motion is denied, the Order may allow the movant to file affidavits and other documents in support of his asserted findings of fact.
(f) Review of Decision. The Order of the Office of Hearings and Appeals with respect to a Motion for Evidentiary Hearing shall be subject to further administrative review or appeal only upon issuance of the determination referred to in § 205.199B.
(g) Conduct of Evidentiary Hearing. All evidentiary hearings convened pursuant to this section shall be conducted by the Director of the Office of Hearings and Appeals or his designee. At any evidentiary hearing the parties shall have the opportunity to present material evidence which directly relates to a particular issue of fact set forth for hearing. The presiding officer shall afford the parties an opportunity to cross examine all witnesses. The presiding officer may administer oaths and affirmations, rule on objections to the presentation of evidence, receive relevant material, rule on any motion to conform the Proposed Remedial Order to the evidence presented, rule on motions for continuance, dispose of procedural requests, determine the format of the hearing, modify any order granting a Motion for Evidentiary Hearing, direct that written motions or briefs be provided with respect to issues raised during the course of the hearing, issue subpoenas, and otherwise regulate the conduct of the hearing. The presiding officer may take reasonable measures to exclude duplicative material from the hearing, and may place appropriate limitations on the number of witnesses that may be called by a party. The presiding officer may also require that evidence be submitted through affidavits or other documents if the direct testimony of witnesses will unduly delay the orderly progress of the hearing and would not contribute to resolving the issues involved in the hearing. The provisions of § 205.8 which relate to subpoenas and witness fees shall apply to any evidentiary hearing, except that subsection § 205.8(h) (2), (3), and (4) shall not apply.
(a) A participant is entitled upon timely request to a hearing to present oral argument with respect to the Proposed Remedial Order, whether or not an evidentiary hearing is requested or convened. A participant's request shall normally be considered untimely, if made more than 10 days after service of a determination regarding any motion filed by the requestor or, if no motions were filed by him, if made after the date for filing his Reply or his Response to a Statement of Objections.
(b) If an evidentiary hearing is convened, and a hearing for oral argument is requested, the Office of Hearings and Appeals shall determine whether the hearing for oral argument shall be held in conjunction with the evidentiary hearing or at a separate time.
(c) A hearing for the purpose of receiving oral argument will generally be conducted only after the issues involved in the proceeding have been delineated, and any written material which the Office of Hearings and Appeals has requested to supplement a Statement of Objections or Responses has been submitted. The presiding officer may require further written submissions in support of any position advanced or issued at the hearing, and shall allow responses any such submissions.
(a) After considering all information received during the proceeding, the Director of the Office of Hearings and Appeals or his designee may issue a final Remedial Order. The Remedial Order may adopt the findings and conclusions contained in the Proposed Remedial Order or may modify or rescind any such finding or conclusion to conform the Order to the evidence or on the basis of a determination that the finding or conclusion is erroneous in fact or law or is arbitrary or capricious. In the alternative, the Office of Hearings and Appeals may determine that no Remedial Order should be issued or may remand all or a portion of the Proposed Remedial Order to the issuing DOE office for further consideration or modification. Every determination made pursuant to this section shall state the relevant facts and legal bases supporting the determination.
(b) The DOE shall serve a copy of any determination issued pursuant to paragraph (a) of this section upon the person to whom it is directed, any person who was served with a copy of the Proposed Remedial Order, the DOE office that issued the Proposed Remedial Order, the DOE Assistant General Counsel for Administrative Litigation and any other person on the official service list. Appropriate deletions may be made in the determinations to ensure that confidentiality of information protected from disclosure under 18 U.S.C. 1905 and 5 U.S.C. 552. A copy of the determination with appropriate deletions to protect confidential and proprietary data shall be placed in the Office of Hearings and Appeals Public Docket Room.
(a) The person to whom a Remedial Order is issued by the Office of Hearings and Appeals may file an administrative appeal if the Remedial Order proceeding was initiated by a Notice of Probable Violation issued after October 1, 1977, or, in those situations in which no Notice of Probable Violation was issued, if the proceeding was initiated by a Proposed Remedial Order issued after October 1, 1977.
(b) Any such appeal must be initiated within 30 days after service of the Order by giving written notice to the Office of Hearings and Appeals that the person to whom a Remedial Order is issued wishes to contest the Order.
(c) The Office of Hearings and Appeals shall promptly advise the Federal Energy Regulatory Commission of its receipt of a notice described in paragraph (b) of this section.
(d) The Office of Hearings and Appeals may, on a case by case basis, set reasonable time limits for the Federal Energy Regulatory Commission to complete its action on such an appeal proceeding.
(e) In order to exhaust administrative remedies, a person who is entitled to appeal a Remedial Order issued by the Office of Hearings and Appeals must file a timely appeal and await a decision on the merits. Any Remedial Order that is not appealed within the 30-day period shall become effective as a final Order of the DOE and is not subject to review by any court.
(a) No person who is not employed or otherwise supervised by the Office of Hearings and Appeals shall submit ex parte communications to the Director or any person employed or otherwise supervised by the Office with respect to any matter involved in Remedial Order or Order of Disallowance proceedings.
(1) Ex parte communications include any ex parte oral or written communications relative to the merits of a Proposed Remedial Order, Interim Remedial Order for Immediate Compliance, or Proposed Order of Disallowance proceeding pending before the Office of Hearings and Appeals. The term shall not, however, include requests for status reports, inquiries as to procedures, or the submission of proprietary or confidential information. Notice that proprietary or confidential submissions have been made shall be given to all persons on the official service list.
(b) If any communication occurs that violates the provisions of this section, the Office of Hearings and Appeals shall promptly make the substance of the communication available to the public and serve a copy of a written communication or a memorandum summarizing an oral communication to all participants in the affected proceeding. The Office of Hearings and Appeals may also take any other appropriate action to mitigate the adverse impact to any person whose interest may be affected by the ex parte contact.
The Director of the Office of Hearings and Appeals or his designee may permit upon motion any document or submission referred to in this subpart other than appeals to FERC to be amended or withdrawn after it has been filed or to be filed within a time period different from that specified in this subpart. The Director or his designee may upon motion or on his own initiative issue any interim or ancillary Orders, reconsider any determinations, or make any rulings or determinations that are deemed necessary to ensure that the proceedings specified in this subpart are conducted in an appropriate manner and are not unduly delayed.
A Notice of Probable Violation, Notice of Proposed Disallowance, Proposed Remedial Order or Interim Remedial Order for Immediate Compliance issued pursuant to this subpart shall not be an action from which there may be an administrative appeal pursuant to subpart H. In addition, a determination by the Office of Hearings and Appeals that a Remedial Order, an Order of Disallowance, or a Remedial Order for Immediate Compliance should not be issued shall not be appealable pursuant to subpart H.
(a) A Remedial Order, a Remedial Order for Immediate Compliance, an Order of Disallowance, or a Consent Order may require the person to whom it is directed to roll back prices, to make refunds equal to the amount (plus interest) charged in excess of those amounts permitted under DOE Regulations, to make appropriate compensation to third persons for administrative expenses of effectuating appropriate remedies, and to take such other action as the DOE determines is necessary to eliminate or to compensate for the effects of a violation or any cost disallowance pursuant to § 212.83 or § 212.84. Such action may include a direction to the person to whom the Order is issued to establish an escrow account or take other measures to make refunds directly to purchasers of the products involved, notwithstanding the fact that those purchasers obtained such products from an intermediate distributor of such person's products, and may require as part of the remedy that the person to whom the Order is issued maintain his prices at certain designated levels, notwithstanding the presence or absence of other regulatory controls on such person's prices. In cases where purchasers cannot be reasonably identified or paid or where the amount of each purchaser's overcharge is incapable of reasonable determination, the DOE may refund the amounts received in such cases directly to the Treasury of the United States on behalf of such purchasers.
(b) The DOE may, when appropriate, issue final Orders ancillary to a Remedial Order, Remedial Order for Immediate Compliance, Order of Disallowance, or Consent Order requiring that a direct or indirect recipient of a refund pass through, by such means as the DOE deems appropriate, including those described in paragraph (a) of this section, all or a portion of the refund, on a pro rata basis, to those customers of the recipient who were adversely affected by the initial overcharge. Ancillary Orders may be appealed to the Office of Hearings and Appeals only pursuant to subpart H.
ADMINISTRATIVE PROCEDURES AND SANCTIONS (U.S.C.). Retrieved via LawPlayer, https://lawplayer.com/us/act/cfr-title-10-part-205
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